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Utah Seeks to Join Challenge to New Federal Fracking Rules

The governor of Utah announced last week that the state is working to join Wyoming, North Dakota, and Colorado in challenging the U.S. Department of the Interior’s (DOI) rule to regulate hydraulic fracturing on federal and tribal lands. The case Utah is trying to join was filed by Wyoming in March and claims the new fracking rules exceed DOI’s jurisdiction under the Federal Land Policy and Management Act, the Mineral Leasing Act, as well as the Safe Water Drinking Act. Two industry groups sued to block the regulations immediately following their release, but Wyoming is the first state to sue. The suit revolves around the new rule’s well casing and wastewater storage requirements, as well as the requirement for drillers to disclose what chemicals they are using in their fracking operations.

DOI’s rule was the result of a four-year effort by the Bureau of Land Management (BLM) to determine how best to regulate the advances in fracking. The agency says there are more than 100,000 oil and gas wells on federally managed lands, and of the wells being drilled, more than 90 percent use fracking, the agency has said. The final rule will require interim storage of all produced water in rigid enclosed, covered, or netted and screened above-ground tanks, subject to very limited exceptions in which lined pits could be used. Also, public disclosure of all chemicals, subject to limited exceptions for trade secret material, will be required after fracturing operations are complete.

The existing database, FracFocus (http://fracfocus.org), can be used for this disclosure. FracFocus is managed by the Ground Water Protection Council (GWPC), a non-profit organization of state water quality regulatory agencies, and by the Interstate Oil and Gas Compact Commission (IOGCC), a multi-state government agency charged with balancing oil and gas development with environmental protection. For state and tribal fracking regulations already in place, the rule includes a variance process that allows for deferring to states and tribes that already have standards in place that meet or exceed those proposed by the rule. Crowell & Moring’s Energy and Public Policy Groups will continue to monitor this case and are available for any questions you might have on the new fracking rules and their impact.

Crowell & Moring LLP is an international law firm with approximately 550 lawyers representing clients in litigation and arbitration, regulatory and policy, and transactional matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation, as well as its ongoing commitment to pro bono service and diversity, equity and inclusion. The firm has offices in Brussels, Doha, London, Los Angeles, New York, Orange County, San Francisco, Shanghai, and Washington, D.C.

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